125. The Antiquity of Parliaments folio 128. 24 Answer to the the second Reason urged for Impositions That the King may totally restraine importation and exportation and therefore may restraine sub modo by laying Impositions folio 124 125 c. 25 Answer to the third Reason That the Ports are the Kings and that he may open and shut them on what conditions he pleaseth folio 136. 26 Answer to the fourth Reason That the King is bound to protect Merchants and safeguard the Seas and that therefore he may lay moderate Impositions for raising of many to defray his charges folio 138. 27 Answer to the fifth objection That all forreign Princes have power to impose and if our King should not have the like it might be very inconvenient to this State ibid. 28 A summary Conclusion of the whole Argument folio 141. Mr. SPEAKER THe Question now in debate amongst us is Whether his M tie may by his Prerogative Royall without assent of Parliament at his own will and pleasure lay a new Charge or Imposition upon Merchandizes to be brought into or out of this Kingdome of England and enforce Merchants to pay the same I Must confesse that when this Point was first stirred mongst us and that wee not contented to seeke redresse for the excesse of the present Impositions resolved to proceed farther by calling his Majesties right of Imposing into question I was very sory for I saw we were then in a faire way to have obteined a very great abatement of the Impositions that now are and besides we had his Majesties promise never to lay any more but in Parliament time by the advice and free consent of his Subjects repayring hither from all parts of the Realme This hope of a present ease and gracious promise for the time to come gave me I confesse a full satisfaction especially seeing I was confidently perswaded that his Majesties right to impose was very cleere and not to be disputed and that therfore by drawing into question the right wee might give his Majesty just occasion to withdraw from us his gracious purpose of the present abatement as also his promise for the time to come For Syr when the Case of Bates who as you know was called into question for refusing to pay the Imposition laid upon Currans was argued in the Exchequer in which Case his Majesties right to Impose was solemnly disputed and there resolved for his Majesty I was then present at all the Arguments both at the Bar and at the Bench And I doe confesse that by the weighty and unanswerable reasons as I then conceived them of those grave and reverend Judges Flâ—ming Ch. Bar. Clarke Savil. sitting in their seate of Justice I was much perswaded but by those many records vouched by them I was altogether overcome and as it were vanquish't to yeeld to them for Syr Ratio suadet Anthoritas vincit But though I were then and when the Question was first moved in this house very confident yet as you shall perceive anon I was not very constant in that opinion for being amongst others imployed by this house to make search in the Exchequer for Records which by the practise of former ages might guide our judgements in this weighty point and having diligently collected the Arguments made in the Exchequer and not only so but compared my owne collections with Reports thereof made by divers other of my friends finding that some of the Records urged in those Arguments were untruly vouched and many misaplyed I then began to stagger in my opinion and presently fell to examine the weight of the Reasons which had been alledged which in my poore censure I found not of strength sufficient without the full concurrence of cleere Presidents of former times to maintaine the Judgement given or my Opinion grounded thereupon And therefore Syr In love to the truth I did forsake my former opinion as erroneous and do now embrace the contrary that is That his Majesty hath no right to impose and so am now become a convert Those Reasons that moved mee thus to change and the weakenesse which I discovered in the Reasons alledged against the opinion which I now hold I will with your patience open unto you and will therein follow the commandement of Christ to Peter Beeing converted seeke to convert my brethren As touching the Judgement in the Exchequer standing yet in force so often cast as a block in our way though I much reverence the persons of those yet living and the memory of those that are with God who gave the Judgement Yet seeing as I hope I shall bee able evidently to prove the same to bee against the great Charter of our Liberties I can esteeme no otherwise of it then the Statute of 25. Ed. 1. cap. 10. pronounceth of all such Judgements that is that it is void and to be held for nought Thus much I thought good to say by way of Preamble or Introduction to the matter now by your favors I will enter into the debate of the Question in handling of which I will purposely avoid the repetition of any thing that hath been spoken by any man that hath argued before as knowing in what presence I speake That I may the better convey my selfe through my Argument and be the better conceived of you that are to heare me I will divide that which I have to say into certain parts which I will prosecute in order First I hold it necessary to consider whether Custom were due to the king by the Common-Law Secondly admitting it to bee due by the Common-Law whether it were a summe certain not to be increased at the kings pleasure or otherwise Thirdly supposing that by the Common-Law the king might by way of imposition have increased his Custom at his owne will by his absolute power without assent in Parliament whether or no hee bee not bound to the contrary by Acts of Parliament In the handling of which part I will consider the strength of every Act of Parliament hitherto vouched to this purpose answering as I goe such objections as have been made against those Statutes by such as have mainteined that the king is not bound by them I will also add a Statute or two as yet not remembred by any Lastly I will discover unto you the weaknesse of such Reasons as have been made in maintenance of the Kings right to Impose in the prosecuting of which parts I will as occasion is offered give some answere to that which hath been last spoken as knowing it to be expected at my hands By Sir Robert Hitcham First then to consider Whether there were by the common-Common-Law any duty belonging to the King upon Merchandize to be caried into or out of the kingdom known by the name of Custom Though the mainteinance of Custome to be due by the common-Common-Law be a point of such consequence to them that mainteined the Kings right to Impose as without the upholding of which
Magna Charta cap. are called old and ancicient duties this is Vectigal Patrimoniale of which sort I could produce many others all which have like certainty Nay there is one duty well known to us all which the common-Common-Law giveth to the King and is in his nature a Custome our very case in which the King is bound to a certainty which he cannot exceed and that is Prisage a duty given by the common-Common-Law to the King upon every shiploading of Wine brought into the kingdom by English Merchants and is one Tun of Wine before the Mast and another behinde I am unwilling to trouble you with any more particulars of this kinde but let any man shew me one particular to the contrary and I will then yeeld that my position being false in one may be in more But till my position hath been in this point infringed this generall concordance of the Law in all these particulars is argument enough for me without having aleadged other reasons to conclude that Custome being as all these are a revenue due to the King by the Common-Law arising out of the Property and interest of the Subject is as all these are limited and bounded by the Common-Law to a certainty which the King hath not power to increase Vbi eadem Ratio eadem Lex It may perhaps be here objected that the Ayd paid to the King upon the Knighting of his eldest Sonne or marriage of his eldest Daughter was by the Common-Law uncertaine and that the King did take more or lesse at his pleasure untill he was bound to the contrary by Statute To this I make divers answers Though it were indeed a summe uncertaine yet the Common-Law did in some sort give it a limitation for it is by a speciall name called Reasonable Ayd So as if the summe demanded doe exceed Reason it became from a Reasonable Ayd an unjust exaction Besides this revenue was a thing happening very rarely and therefore the certainty thereof not so much regarded by the Law and yet it is to be observed how the frame of this Common-wealth could not long indure incertainty even in this casuall Revenue but it was reduced to a certainty of twenty shillings upon a Knights fee and 20s. upon every twenty pounds Soccageland by the Stat. of West 1. cap. 35.3 Ed. 1. If in this casuall Revenue they were so carefull to be at a certainty to avoid unreasonable exactions as the words of the Statute are how much more carefull would they have been for the same cause to have reduced the great and annuall Revenue of the Custome to a certainty if they had not thought it to have been certaine by the Common-Law or limited by Statute-Law before that time made But Sir that which I rely upon for answer to this objection is this Reasonable Ayd was and is by the Common-Law due as well to meane Lords as to the King But meane Lords were not limited to a certainty otherwise than in generall that it must be reasonable as I have said therefore to limit the King any further was no reason And this answer may be given for all uncertaine Revenues belonging to the King the like of which mean Lords have of their Tenants for the incertainty of which there may also be given especiall reason because these duties first began by speciall contract and agreement between the Lord and the Tenant and not directly by operation of the Common Law and so were certain and uncertain as they did at first agree and therefore you may be pleased to remember how in laying my positiō I was wary to say That such revenues as are due to the King as to the head of the Common wealth by which I purposely excluded such revenues as are common to him with other mean Lords are alwayes certaine I am now according to promise and in maintenance of a second part of my position to shew you That where the Common-Law giveth the King a Revenue not certaine at the first that is alwayes reduceable to a certainty by a legal course as by act of Parliament Judges or Jury and not at the Kings pleasure Every man that by his tenure is bound to serve the King in his warres and faileth is to pay according to the quantity of his Tenure a fine by the name of Escuage this cannot be assessed but in Parliament Upon forfeitures for treason or otherwise to the King though it be a kinde of a certainty that the Law giveth in giving him all the estate of the party convict both in goods and Lands or in goods onely as the case is yet for reducing it to a more expresse certainty the Law requireth that it be found by Office Wayfe Stray Wreck Treasure-Trove and such like are no lesse certaine for the King hath the things themselves in kinde Fines for misdemeanors are alwayes assessed by the Judges Amercements in all cases are to be afferred by the Country and not to be assessed by the King though the forme of the Judgement be Et sit in misecordia Domini Regis in the Kings mercy pro contemptu predict Nay though for punishment of an offence it be by Statute-Law enacted that an offendor shall make Fine and Ransome at the Kings pleasure the Law even in this case which is as strong a case as may be will not leave the assessing of the Fine to the Kings pleasure to be by him rated privately in his Chamber but it must be solemnly and legally done in an open Court of Justice by the Judges who in all other cases are to judge between the King and his people where the interest or property of the Subject or any charge or burden upon them doth come in question as may be proved by the booke of 2 R. 3. fo 11. Insomuch that I am of opinion that if a Statute were made that the King might raise the Customes at his pleasure yet might it not be done as now it is by the Kings absolute power but by some other legall course of which the Common-Law doth take notice as in the case of the Fine and Ransome much lesse then will the Common-Law permit that it should depend upon the Kings absolute pleasure there being no such Statute in the case You have heard out of what grounds I first deduced this my position That the Law requireth certainty in matter of profit between the King and his people You have heard likewise the particular reasons of that position you have also heard what proofe I have made by particular cases of like nature to this in question and how I have applyed them to the point And so leaving the Judgement of the whole to your wisedomes who can best discerne whether the Argument be of weight I proceed to my second Reason which is drawne from the policy and frame of this Common-wealth and the providence of the Common-Law The which as it requires at the Subjects hands loyalty and obedience to their Soveraigne so doth it likewise
one aide or other in Parliament sometimes a taxe sometimes a Fifteenth sometimes a Subsidie of Tonnage Poundage In the eighteenth yeer he was inforced to go in person into Ireland to settle the state of that Country then in Rebelion all these troubles he had from abroade besides those famous Rebellions here at home which afterwards cast him out of his Seat yet did he never for all this attempt to lay impositions though he wanted not about him to put him in minde of his absolute power For Edward Strafford Bishop of Exeter Lord Chancellor of England in a Sermon made to the Parliament held anno 21. as our Chronicles report did publiquely maintaint that the King was not bound by any Law but was of himself absolute above Law and that to controle any of his actions was an offence worthy of Death at which Parliament all that were present came armed for fear of the King and the Parliament House it selfe was beset with 4000. Archers by his appointment I will speak no more of him then this though he were a King of a weak spirit yet did he not spare to practise upon his people the most grievous things that were Insomuch that he so farre discontented them that they deposed him by common consent in Parliament the onely desperate example of that kinde that our Histories doe afford or I hope ever shall His successor Henry the fourth Hen. 4. in respect he held the Crown by so weak a title had cause to give the people all the content he could possible and yet he was so oppressed with warrs on all sides from France and Scotland but especially by continuall and dangerous invasions made by the Welsh as without the aide of his people for the supply of his treasure it had not been possible for him to have held his Crown on his head and therefore he pressed his people so farre that in a Parliament held the fifth yeere of his reigne they yeelded to him so great and so unaccustomed a tax as that the grantors thereof as our Chroniclers say tooke speciall order that no memory thereof should remaine of record onely to avoide the president and yet the very next yeere following his wants were againe grown so great as his Subjects being assembled in Parliament to give him further ayde did resolve that there was no other way to supply his want then to take from the Clergie their temporall Lands and goods and to give them all to the King which being withstood by the Clergie a resumption of all the guifts of Ed. 3. and Ric. 2. was propounded at last after they had sate a whole yeere they gave him two Fifteenths at this time most of his Counsell and the great Officers of the Kingdome were Spirituall men had they not now if ever a just occasion given them to have put the King in minde of his Prerogative of laying impositions not onely to the intent to have diverted him from the harkning to that desperate motion that had been made against them to all their utter undoings but were they not also bound in duty and conscience in this time of so great necessitie seeing the Parliament knew not otherwise how to supplie the Kings wants to have advised him to have made use of his lawfull right of imposing by which means he might without troubling the Parliament quickly have raised great summes of money certainly it was not because they were ignorant of any such practise in former times For none of them that were then of the Counsell to Henry the Fourth but they lived in Ed. 3. time and most of them doubtlesse were in Ed. 3. time men of age and discretion But in all likelyhood as they knew that Edward the Third did lay impositions so likewise they knew that impositions had been from time to time in those daies condemned as unlawfull and were become hatefull to the people and onely for that reason they did forbeare to advise the King to take that course though the necessitie were never so great Another Prerogative as much concerning the interest of the Subject as this of Impositions namely the abasing of Coyne this King made no scruple at all to put in practise because he held it to be lawfull His Sonne and next Successor Hen. 5. who by his many victories over the French Hen. 5. and his noble disposition and behaviour towards his people was so farre beloved of them as never was King of this Realme more though the Kingdome were now by one degree of discent more firmely setled upon him then it was on his Father who usurped it though also his expence of treasure by reason of that great warre in France were as much as any king's of England ever were though he had troubles also from his Neighbours the Scots and within his owne Realme by Rebellions and lastly though he spared not for supplie of treasure to suppresse above a 100. Priories of Aliens yet neither out of the strength of his love with the people nor in his extreame necessity by reason of these honorable warres in France for the maintenance of which the people would willingly have undergone any burden which he would have laid upon them especially after the victory at Agencourt did he ever so much as attempt the laying of Impositions His Successor Hen. 6. Hen. 6. though indeed of a meek spirit yet he was so followed with troubles within the Realme and from abroad that he was inforced to crave such an extraordinary aide of his Subjects in Parliament as the levieing thereof was the cause of that famous Rebellion of Jack Cade in his time Besides in the 18 yeer of his Reign for the ease of his charge and supply of his wants all Grants by him made of any Lands Rents Annuities or Fees whatsoever since the first day of his Reigne were resumed and this is never yeelded to but in cases of extreame necessity As for Impositions notwithstanding his great wants he thought not of them Edw. 4. Edw. 4. that succeeded him was no lesse free from troubles for he was as you know driven to forsake his Kingdome and to live for a while like a banished man with the Duke of Burgundy He was also inforced in the 5 yeer of his Reign to make a Resumption and the same yeer to abase his Coyne And Comines observeth of him that he obteined a Subsidie of his Subjects in Parliament upon condition that he should himselfe in person undertake the war in France and that only to get the Subsidie he passed the Seas into France but presently returned without doing any thing What should such shifts as these have needed if he might without being beholding to his Subjects lawfully and without controll have raised Treasure by laying of Impositions It is well worth the remembring that which the same Comines speaking in commendation of the frame of this Common-wealth saith That this State is happy in that the people cannot be compelled by the
Plowdens argument against it in M. Tates hand but their resolution is no where to be found at least by Us It is very probable that if they had given judgement for the Queen it would not have beene kept close but howsoever the profit was too great to be taken from the Crowne and therfore it continues till this day Howsoever the reason in equity in the laying this Imposition upon Cloth may seeme to bee sound unto some men and so to allow of this Imposition as differing from ours yet for my part I hold it not so when I consider what course was taken by Ed. 3. upon the same occasion an 11. E. 3. c. 1. 2. It was enacted that no wooll should be caried out of England but by the Kings licence and that no man should weare Cloth other than such as should be made in England this Law tooke such effect as within ten yeeres the greatest part of the Wooll in England was made into Cloth and it became to be transported in such abundance by reason that there was no Custome at all due upon Cloth and the Custome and Subsidie upon Wools was very high that in the 21 yeere the King finding his Custome of Wools so much decreased doth seeke to remedy it not by imposing a new charge upon Cloth by his absolute power as Qu. Mary did but did it by assent of his Subjects in full Parliament as I collect partly by my L. Dyer in the place last mentioned but more fully by a recitall in a Record amongst us of 24. E 3. ro 13. orig de Scaccar to this effect That whereas the Customes and Subsidies due and granted upon Wools are much decreased because a great part of the Wooll of England is made into Cloth for which no Custome is due and whereas in consideration thereof at our Councel held the 21 yeere of our Reigne by the common assent of the Prelates Earles and Barons and others it was ordeined and accorded that 14d. by Denizens and 20d. by Strangers should be paid for every cloth of Assise c. made of English wooll and transported upon paine of forfeiture of the Clothes And so followeth an authority given to collect the same The next Imposition laid by Q. Mary was forty shillings upon a Tun of French wines imposed in the 5 yeere of her Reigne at which time there was first a Proclamation made that no wines at all should be brought from France being then in enmity with England upon paine of forfeiture of the Wines which by the way is a strange clause in a proclamation Immediately after this restraint there was an order made by the Qu. and her privy Counsell that such as would might bring in French wines notwithstanding the Proclamation paying forty shillings upon every Tun by the name of Impost as doth appeare by Record in the Rolls of Easter Terme 1 Eliz. in the office of the K. Remembrancer of the Exchequer in the case of one Germane Ciol German Ciols case against whom an Information was exhibited for not paying the said Imposition Whereunto taking it by way of Traverse that there is any Law of the Land by which he may be charged with Impost he pleads a licence made unto him an 1. 2. Ph. Mar. to import a certaine number of Tunnes of Wine within a certain time any restraint then made or afterwards to be made to the contrary notwithstanding Provided alwayes that the Custome Subsidie and other duties due and accustomed to be paid to the King and Queen were duly satisfied He shewes that for all Wines brought in by him during the life of Queen Mary he paid the Subsidie of Tonnage viz. three shillings for every Tun which was all that was due and accustomed to be paid Upon this plea a demurrer was joyned and judgement given thereupon against the Queen This Judgement hath been enforced in the maintenance of Impositions Whether or no it make not rather against them I leave to your censures Neere about the same time there were Impositions laid also by Queen Mary upon all French commodities whatsoever to be imported as may appeare by the Port-bookes of those times in the Exchequer which Impositions were received to the use of Queene Eliz. in the beginning of the 1 yeere of her Reign but ere the yeer ended they were all taken away as may appeare by the same Port-bookes which in my opinion is a great argument that they were not then held lawfull For Princes doe not so easily give over their hold in matters of profit if they be any way able to maintain it What hath hitherto upheld the Imposition upon Wines I know not except it be the great profit that comes by it to the Crown and because there was never any late Judgement given directly against Impositions You have hitherto heard what reason and direct proofe I have used Admitting the king had power by the cōmon-Lawe to lay Impositions yet hee is barred by Statutes to maintaine that by the Common Law the King cannot at his will increase his Custome by way of Imposition You have secondly heard what the practise of former ages hath been in this kinde till this day from which I have also drawn reasons of Inference that prove the Common-Law so to be But now admitting that by the Common-Law it had been cleere and without question that the King might at his will have laid Impositions and that also the same could have been cleerly proved by the practise of the ancient Kings yet I affirme that so stands the Law of England at this day by reason of Statutes directly in the point as the Kings power if ever he had any to impose is not onely limited but utterly taken away as I hope I shall be able evidently to prove notwithstanding any objection that hath been made against the interpretation of the Statutes to this sense The first Statute is in Magna Charta cap. 30. Magna Charta cap. 30. Enforced and the objections made against it answered The words are All Merchants if they were not openly prohibited before shall have their safe and sure conducts to enter and depart to goe and tarrie in the Realme as well by Land as by water to buy and sell without any evill tolls by the old and rightfull Customes except in the time of Warre And if they be of the Land making warre against us and be found in our Realme at the beginning of the warre they shall be attached without harme of body or goods untill it be knowne to us or our Justices how our Merchants be intreated there in the Land making war against us c. The Statute of which this is a branch is the most ancient Statute-Law we have wonne and sealed with the blood of our Ancestors so reverēced in former times that it hath been by Parliament provided that Transcripts thereof should be sent to all the Cathedrall Churches of England there to remaine that it should be twice every
fourteene twelve yeeres her age of consent and nine yeeres capable to bee endowed a yeere and a day given to sue an appeale the like limitation of a yeere and day in very many other Cases In effect who reduced all the known grounds of the Common law to that certainty that now they are Because wee cannot tell how or when they began shall wee therfore conclude that they began by the kings absolute power and inferre that by the same reason they may bee changed at his pleasure If the king may increase his Fines upon the purchase of Originall writts which by the same reason hee may doe that hee may doe his Custome nay hee hath more colour for this then for that because there is no Statute against this hee might easily raise that revenue to the value of his Customes But no man can nor will I hope offer to mainteine it to bee lawfull You see the weakenesse and the dangerous consequence of this argument by comparing it to other cases of like nature To say the truth all these things began no man can say certainly when or how but by a tacit consent of king and people and the long approbation of time beyond the memory of any man and yet no man can directly affirm but that most of them might begin by Act of Parliament though now there bee no Records extant of such antient Parliaments The first Parliament was not kept 9 H. 3 though it be the first in our bookes If we will give credit to other Records and to our best Chroniclers The antiquity of Parliaments we shall heare and reade of divers Parliaments in the Reigne of King John and of his Predecessor Rich. 1. and in the Reign of H. 2. of two famous Parliaments one at Claringdon in Wiltshire the other at Gedington in North-Hamptonshire And although our Chronicles say that the first Parliament kept in this Realm was held 19 Aprilis 16 H. 1. yet I am of opinion that William the Conqueror held Parliaments for what can be else understood by these words Per commune consilium totius Regni nostri stabilitum fuit which I finde in Mr. Lamberts collection of the ancient Lawes of England in the beginning of the Lawes of W. the Conqueror Many of the Statutes of E. 1. have no other words Nay long before him in the yeere of our Lord 712. in the time of Inas King of the West-Saxons I assure my selfe there were Parliaments held and that of the three Estates as at this day as may appeare by these words in the beginning of the Lawes of King Inas in Mr. Lambert Suasu Instituto Episcoporum nostrorum omnium Senatorum nostrorum natu majorum populi nostri in frequentia magna And more plainly in the conclusion of some other of his Lawes Hoc factum fuit per commune consilium assensum Procerum Comitum omnium Sapientium Seniorum Populorum totius Regni per praeceptum Regis Inae which are the same in Latine which ours is in English By the King the Lords Spirituall and Temporall and the Commons VVhy might not the Custome upon Woolls be first granted at one of these Parliaments as well as to have it first begun by the Kings absolute power There is no more probability of the one than the other because most of the ancient Records were burnt in H. 2. time when the Exchequer was burnt shall we conclude therefore that there were neâ—er any such You see the weaknes of this Argument in all the points thereof I leave it and passe to another The King may say they restrain the passage of Merchants at his pleasure The second Argument that the King may totally restrain the importing and exporting of merchandizes therfore he may do it sub modo by laying of an Imposition answered which they prove by divers Records 2 E. 1. m. 18. Ro. Par. 2 E 1. m. 17. Ro. fin 31 E. 1. n. 44. Ro. Pat. 17 H. 6. Ro. Clo. in dorso Upon which they inferre that if he may restraine a Merchant that he shall not passe at all he may much more so restraine him that he shall not passe except he pay a certaine sum of money For this say they is lesse than totally to restraine him And Cui licet quod majus licet etiam quod minus Of this Argument my L. Dyer gave light in his case of Impositions 1 Eliz. and this hath been diversly inforced by all that have argued for Impositions In answer of which I will consider how farre the king may restrain the passage of Merchants and then will examine the consequence of the Argument For my part I think the king cannot restrain the passage of Merchants but for some speciall cause wherein to define certainly and resolutely to say for what causes he may and for what not I will not undertake Onely let me inform you that there is not one of these presidents vouched by them to prove the kings power to restraine but they are upon speciall reasons as by reason of Enmity with such a Nation from whence they are restrained or because such a Commodity may not be spared within the kingdome Besides they are not restraints from all places and of all manner of Merchandizes but from certain places onely and for certain sorts of Merchandizes And for my part I thinke that restraints in all these cases and of like nature are by the Common-Law left to the kings absolute power For if it were otherwise it should be in the power of a Merchant for a little private lucre to enrich the kings Enemies or to furnish them with munition to be imployed against the State or utterly to ruine the Common-wealth by carrying out a Commodity which may not be spared or by bringing in of some that may be hurtfull Nay which is more such may be the occasion that the king may I doubt not stop the passages of all Merchants from all places for a short time as upon the death of the late Queene it was put in practise to prevent Intelligence there may likewise be such necessary use of their ships as the want of them upon some sodaine attempts may be a cause of the overthrow of the whole State In such cases as these if the Common law did not give the King leave to restraine their passage by his absolute power it were very improvident in the highest points which cannot be imagined of so wise a law And yet the Kings of this Realme have alwayes been sparing in the practise of their absolute power in this point For there are little lesse then 30. Acts of Parliament touching the opening and shutting up of the passage of Merchants most of which as I conceive were made rather for the increase of punishment then for want of power in the King For the breach of a restraint by absolute commandment is punishable as all other contempts onely by Fine and Imprisonment and not by forfeiture of the Merchandizes
Kings and that he may open them and shut them upon what conditions he pleaseth answered and in regard thereof he may open and shut them upon what conditions he pleaseth I answere I. That the Position that all the Ports are the Kings is not generally true For Subjects may also be owners of Ports as may appeare by the Patent Roll of 3. E. 1. M. 1. Parl. where you shall finde that King Ed. 1. granted to the Lords of Port Townes the forfeitures granted to him by Parliament for not duly paying the new Custome of the demy-Marke within every severall Port of theirs where the Merchandizes should happen to be imported or exported But admitting the truth of the position yet is the consequence as weake and dangerous as of any of the rest of their arguments For are not all the gates of Cities and Townes and all the Streets and Highwayes in England the Kings and as much subject to be open or shut at his pleasure as the Ports are Nay whensoever we speake of the Highway in any law businesse we call it via Regia the Kings Highway and the King in his Commissions speaking of London or any other Citie calls it Civitas nostra London or Civitas nostra Exon Doth it follow therefore that the King may lay Impositions upon every man or upon all Commodities that shall passe through any of these places Nay the gates of the Kings owne house for the purpose his Pallace of Westminster are his in a farre neerer degree then any of these may he therefore by his Proclamation impose upon every man that shall passe in or out at Westminster Hall doore a summe of money Doubtlesse he may not because the King is a person publike and his Subjects ought to have accesse to him as to the fountaine of Justice and to the Courts of Justice sitting by his authoritie I make little doubt but his Majestie may upon just occasion cause any of these passages to be shut as he may also the passage at the Havens But when the Passage may without danger to the State be open and that the Subjects may passe his Majestie may not then exact money for their passage For the law hath given the King power over these things for the good of the Common-wealth and not thereby to charge and burden the Subject If the King may not exact money for passage in and out of his Court gates because of the publikenesse of his Person Nor for passage through the gates of Cities much lesse may he for passage out at the Ports which are the great gates of the Kingdom and which the subject ought as freely to enjoy as the ayre or the water Another of their arguments is this The fourth argument that the King is bound at his owne charge to protect Merchants therefore it is necessary it should be in his power to lay moderate Impositions upon Merchandizes for raising of money to defray his charge Answered The king is bound to protect Merchants from spoile by the enemie he ought to fortifie the Havens that their ships may there abide in safety he ought if occasion be to send Ambassadors to forrein Princes to negotiate for them and many the like charges is the King by the Law to undergoe for the protection of his Merchants It is reason therefore that his expence be defraied out of the profit made by Merchants and consequently that he may impose upon Merchandize a moderate charge thereby to repay himself The consequence of this Argument is thus farre true The law expects that the King should protect Merchants therefore it alloweth him out of Merchandize a revenue for the maintenance of his charge which is the old Custome due as at first I said by the Common law But it is no good consequence The Fifth Argument that all forraine Princes have power to impose and if our King had not the like it might be very inconvenient to this State Answered that therefore he may take what he list no more then he may at his pleasure increase that old revenue which the law giveth him for protecting of Subjects in their suits or for protecting Wards c. Another Argument of theirs is this All other Princes of the world may impose upon merchandize at their pleasure and so may make our Merchandizes lesse vendible with them by laying an Imposition upon them to be paid by us when they are brought into their Territories whereby their owne Commodities of the same nature may be sold more to the gaine of their Merchants and our Merchant impoverished or driven from his Trade They may also lay Impositions upon our Merchants fetching Commodities from thence and leave their owne Merchants free from any Imposition in the same case by which their merchants shall reape all the profit by that commoditie in affording it better cheape to us here then we can fetch it and consequently our merchants shall be undone Many the like cases have been put to prove That if the King of England may not impose as other Princes may they shall be able at their pleasure to destroy our trading This I conceive was the same as now it is during all that time from Ed. 3. till Queen Mary and doubtlesse it could not but sometimes during that long space so fall out that forreine Princes did put their power in practise to our prejudice and yet we heare not of any Imposition laid by any of our Kings by their absolute power which may give any man assurance that they tooke some other course to meet with the inconvenience and in deed the meanes are divers which these our Kings used to prevent it First they were carefull in all their Leagues and Treaties with forrain Princes specially to provide for it as may appeare by the Records of the ancient Leagues Neither is there any League of late time that hath not had an Article for provision in this point which Leagues for the most part are upon oath on both parts And yet for further securitie our Kings have always had Ambassadors resident in the Courts of such forrain Princes to put them in minde of their Leagues if upon any occasion our Merchants have in that case happened to be never so little wronged by them if upon complaint of the Ambassador our merchants have not found redresse our Kings have held the League as broken and denounced Warre or seised all the goods of the same Princes Subjects within England and I dare say there have been more warres undertaken by our Princes against forrain nations onely for this cause then for any one other cause whatsoever Besides our Kings have in this case sometimes made use of that their Prerogative of restraint either by prohibiting our Merchants from carrying our Commodities into those parts where they are charged with Impositions that so by the want of our Commodities forraine Princes might be enforced to abate their Impositions laid upon them or by restraining the Merchants of forrain Princes to import or export commodities from hence By which meanes forraine Princes have been compelled to deale favourably with our Merchants for the good of their owne Subjects All these are lawfull and ordinary means to prevent or redresse the inconvenience which may grow by the Impositions of other Princes If all these ordinary means should happen to faile which can hardly so fall out and that the laying of Impositions be indeed the only means that is left to redresse the inconvenience why should not that be done by Act of Parliament as well in these times as it was in 7. H. 7. cap. 7. to take downe the Imposition of Foure Ducates upon a But of Malmsey imposed by the Venetians And as it was done by Queen Eliz. the 19. yeere of her Reigne to prevent the laying of Impositions by forraine Princes upon Salt-fish as may appeare by the printed Statutes of 19. Eliz. cap. 10. But as I have said the providence of the Prince and ordinary power of restraint may very well meet with the inconvenience These are the chiefe reasons made in maintenance of impositions the weaknesse of them and their dangerous consequence you cannot but perceive For by the same reasons Taxes within the Land may be as well proved to be lawfull On the contrary part you have heard the reasons against impositions fortified by many Records and Statutes in the point So as I conclude that Impositions neither in the time of warre or other the greatest necessitie or occasion that may be much lesse in the time of peace neither upon forraine nor inland Commodities of whatsoever nature be they never so superfluous or unnecessary neither upon Merchants Strangers nor Denizens may be laid by the Kings absolute power without assent of Parliament be it for never so short a time much lesse to endure for ever as ours Though this be now my opinion yet am not I so obstinate therein but if yet I heare better reason I will once againe change my minde in the meane while you see I had reason to alter my first opinion as being grounded upon very weak Reasons as now they appeare unto me And so I suppose they doe also unto you FINIS 7o. Julii 1641. AT a Committee of the Honorable House of Commons for Examination of books and of the Licensing and Suppressing of them c. It is Ordered That this Argument upon Impositions be forthwith published in print EDWARD DERING
their opinion as I conceive is not so much as colourably to be mainteined and that to maintein the same it be not at all necessary to induce my conclusion and although to admit it it may seem perhaps no good policy of Argument but rather a great disadvantage to me to admit that without which the contrary part cannot uphold their opinion and which being admitted cannot make any thing for me yet because we are here not as Arguers at the Bar but as Judges in a high-Court and that all our ends tend to the discovery of the truth I will therefore not only admit it but will maintein it as well as I can That Custom is due by the Common-Law I collect That there was ever some Custome due by the Common Law first by the name thereof for though at this day it bee and so hath beene for more then 350 yeeres as I shall have occasion more fully anon to open unto you called in our law-Latin Custuma yet in ancient time it had no other name here amongst us for I meane not to wander into forreign-learning then Consuetudo as may appeare by the Statute of Magna Charta cap. 30. Per rectas antiquas Consuetudines for I shall anon directly prove unto you that Consuetudo in that place is not to be understood a usage as hath been said but in that sence which I take it This name Consuetudo in the same sense is also found in many ancient Records brought into this house upon the late search That this name then Consuetudo which implies an approved continuance without a known beginning should by the Common-Law be given to this Revenue more then to any other Revenue belonging to the King nay that this terme which is the common and generall name to all common and approved usages of what nature or kinde soever should be applied to this dutie rather then to any other amongst all the ancient usages and Customes which the Common-Law imbraceth cannot but denote the great antiquity thereof and more then so the allowance and approbation thereof by the Common-Law for doubtlesse if beside the antiquity of this dutie the Common-Law had not also alowed the reasonablenesse of it and in a manner the necessity of it it would never have denoted it unto us by this name of excellency above all other Customes which require reasonablenes as well as antiquity Therfore doubtlesse this duty thus favored is a Childe of the Common-Law nay farther it is of the very essence of a Custome to have his only beginning by alowance of the Common-Law for that which beginneth by private contract of partie or by Act of Parliament dependeth not wholly upon the alowance of the Common-Law by one of which three waies all things considerable in Law have their commencements cannot bee called or bee a Custome in Name or Deede moreover considering that this Custome is not limited to any one place within the Realme wee shall so little neede to be curious in affirming it to bee due by the Common-Law as wee may boldly pronounce it to be part of the Common-Law it selfe Thus you see that the very name Consuetudo proves Custome to bee a dutie by Common-Law To this may bee added that Magna Charta cap. 30. which Statute was made little more then 150 yeeres after the Conquest termeth this not only Consuetudo which as I have said implies Antiquity beyond all remembrance of a beginning but Antiqua Consuetudo not onely Custome but old and ancient Custome And in comparison to this old Custome due at Common-Law the Custome upon Staple Commodities given or increased by act of Parliament 3 E. 1. not printed was called Nova Consuetudo Before the making of which Statute of 3 E. 1. you may further see that Custome was due For an 52. H. 3. in the Statute of the Exchequer printed you may read that the Collectors of the Custome of Wools were to yeeld their accompt twice every yeere into the Exchequer But that which most of all moveth me to beleeve that this duty was and is due by the Common-Law is this That in all Cases where the Common-Law putteth the King to sustaine Charge for the protection of the Subject it alwayes yeeldeth him out of the thing protected some gaine towards the maintenance of the Charge As for the protection of Wards Lunatiques and Ideots the profits of their Lands For the maintenance of the Courts of Justice it giveth him Fines for purchase of Originall writs and Fines pro licentia Concordandi which in supposition of Law are no other than Fines paid for not proceeding according to the surety by pledges put in upon purchase of the Originall and for troubling without cause the Kings Justices who are maintained in their places at the Kings charge There are many the like profits of Court given by the Common-Law to the King for the maintenance of his charge in the administring of Justice This observation which might be further proved by divers other instances in things of other nature maketh me to think that because the Common-Law expecteth that the King should protect Merchants in their Trades by maintaining repairing and fortifying the Havens at home by clearing the Sea of Pirates and Enemies in their passage and by maintaining Ambassadors abroad to treate with forreigne Princes upon all such occasions That it also giveth him out of Merchandizes exported and imported some profit for the sustentation of this publique charge otherwise were the Law very unreasonable and unjust So as to prove that by the Common-Law Custome is due to the King I shall need to say no more especially considering it hath not onely been yeelded to but proved by those which maintain a contrary Conclusion I will therefore proceed to my second Consideration Whether that profit upon Merchandizes which the Common-Law for these respects gave unto the King were a duty certaine not to be increased or inhaunced at the Kings will and pleasure without a common assent in Parliament Or otherwise Whether the Common Law hath left an absolute power in the King to demand in this case more or lesse at his owne pleasure and to compell his Subjects to pay it The resolving of which question will as I conceive make an end of this controversie between us for what are these Impositions which wee complaine of other than the enhauncing of the Custome by the Kings absolute pleasure That this duty given by the Common-Law as I have proved unto the King That Custome due by Common Law was a Sum certain was and is a duty certain not to be enhaunced by the King at his owne pleasure without assent Parliament I hope I shall be able cleerly to prove unto you In mainteinance of which I will use some Arguments of direct proofe and others of great presumption and probability And first I lay this as a ground which will not be denyed me by any man That the Common-Law of England as also all other wise
Lawes in the World delight in certainty and abandon incertainty as the mother of all debate and confusion than which nothing is more odious in Law And therfore the rule is Quod certum est retinendum est quod incertum est dimittendum nay further quod incertum est nihil est This is the censure of Law upon all the acts of men which fall under the judgment of the Law If then the Law so judge of the acts of men holding them for nought and voyde that are incertaine how much more then doth the Law require certainty in her own Acts which are to binde all men And if in any of the acts of Law certainty be to be specially expected most of all is it requisite that bounds of limitation and certainty be set between the King and his poor Subject between the mighty and the weak between the Lion and the Lamb. And if in any Case between the King and his Subject more than other this certainty be required most of all it is requisite in Cases where the Common-Law giveth the King a perpetuall profit or revenue to be raised out of the interest and property of his poor Subjects estate either in lands or goods If in all other things the Law as I have said and wherein I suppose you have yeelded to me doe require certainty and limitation and onely in this case where it is most requisite it hath omitted and neglected it we must conclude the Law to be most unreasonable improvident and contrary to it selfe which to say were to conclude it to be no Law Out of these grounds I may then in my opinion safely and with some confidence deduce and maintain this position That all the Revenue which the Common Law giveth to the King out of the interest of the Subject are certain or reduceable to a certainty by a legall course and none left to the Kings pleasure That the Common-Law of England giveth to the King as to the head of the Commonwealth no perpetuall revenue or matter of profit out of the interest or property of the Subject but it either limiteth a certainty therein at the first or otherwise hath so provided that if it be uncertaine in it selfe it is reduceable to a certainty onely by a legal course that is to say either by Parliament by Judges or Jury not by the Kings own absolute will and pleasure Though this Position be grounded upon those sure foundations out of which I have as you perceive drawn it and needs no farther proof yet because you shal see how plentiful the truth is in reasons to maintain it selfe I will further open unto you the particular reasons of this position which are these First the Law requireth certainty in matter of profit The Reasons why the Law requireth such certainty in those Revenues between the King and the poor Subject because to make any man Judge in his own case especially the mighty over the weake and that in a point of profit to him that judgeth were to leave a way open to oppression and bondage Secondly because by reducing it to a certainty the King may know what certainty to expect that so he may order his charge accordingly Thirdly that the Subject may know likewise what he is to pay that so he may know certainly what shall remaine to him as his own Finally that the King may not depend upon the good will of his Subject for his revenue seeing the Law expecteth he should beare the charge but may know in certainty what to claime as due to him and may accordingly compell the Subject to pay it and that the Subject may not be under the Kings absolute power to pay what the King pleaseth which may perhaps extend to the whole value of the Merchandize You see in generall how the Law by requiring certainty in matter of profit between the King and the Subject preventeth many mischeifes which would fall out if the Law were otherwise and therefore without more saying I might here conclude that Custome being due by the Common-Law was and is a sum certain not to be increased at the Kings pleasure by way of Imposition but because there are many other revenues due to the King by the Common-Law as well as Custome if they all or as many as we can call to minde shall fall out to bee as I have said summes certaine and not subject to bee increased at the kings will this will bee a forcible Argument that custome is likewise certain and not to be inhannced at the kings pleasure for this Argument drawne à simili is of great force and the most usuall of any other in debate of things doubtfull in Law Quae Legibus decisa non sunt Index ex his quae decisa sunt statuet de similibus ad similia procedat May it please you to consider in this respect other revenues which the Common-Law of this Land giveth the King Examples of Revenues given by the Cōmon-Law to the King out of the interest of the Subject that they are certaine and according to the rule to decide that which is in question by the same rule and measure by which other things of the same nature have been decided and ordered The Common-Law giveth the King a Fine for the purchase of an original writ Is it certaine it is and ever hath been if the debt or damages demanded amount to above forty pounds the Fine is and ever hath been sixe shil eight pence and no more if to a hundred pounds then ten shillings and no more May the King increase this Fine at his pleasure there is no man that will say he may There is a Fine due by the Common-Law pro Licentia concordandi is it not certainly known and so hath alwayes been to be the tenth part of the Land comprised in the writ of Covenant And is not also the Post-Fine thereupon due certainly known to be once and a halfe as much more as the Fine pro licentia concordandi or Pre-Fine As for example when the Pre-fine is ten shillings the Post-fine to be fifteen shillings and can the King demand any more of the Subject So likewise when in a writ of Right the Demandant alleadging the seisin of his Ancestor will not be compelled to prove the seisin alleaged is he not to tender to the King a summe certain of a demy-mark to have this benefit was it ever more or lesse or can it now be more if the King would these amongst many others are duties belonging to the King by the Common Law from the Subject for the maintaināce of his Charge in the administration of Justice which the Civilians call Vectigal Judiciarium There are also in divers other Cases duties certain belonging to the King by the Common-Law As for example the reliefe for an Earledome is certainly knowne to be a hundred pounds for a Barony a hundred markes for a Knights fee a hundred shillings all which in the Statute of